FOSTER
v.
SNEAD.
No. 20.
Supreme Court of North Carolina.
March 26, 1952.*605 D. Emerson Scarborough, Yanceyville, for plaintiff appellant.
Glidewell & Glidewell, Reidsville, for defendant appellee.
VALENTINE, Justice.
The defendant's allegation of fraud consists of an assertion that the plaintiff falsely and fraudulently stated to him that he sold from six to eight thousand gallons of gas per month in the operation of the filling station and that the business was worth $1,000 per month and that defendant acted upon these false and fraudulent statements to his injury. The burden of proving his allegation of fraud rested upon the defendant. Poe v. W. F. Smith & Co., 172 N.C. 67, 89 S.E. 1003.
The only evidence offered by defendant in support of his charge of fraud is the following conversations between him and the plaintiff: "I said, `How much is the station pumping a month?', and he (Mr. Foster) said, `Six or eight thousand a month.' * * * I figured over the thing for approximately two weeks and went to his station one afternoon and I said, `I come to get one bit of informationI figure this station has got to support my loanI want you to tell me, on your word of honor, how much total business that *606 station is doing a month,' and `It would have to do $1000 for me to run it.' He said, `The business is here' and that was his answer. And I said, `I just wanted to know on your word of honor because I knew you were the one who knew.' He said the $1000 worth of business a month was there."
The determinative question on this appeal is, did the defendant's proof meet the requirement of the rule laid down for the establishment of actionable fraud? On that question in Harding v. Southern Loan & Insurance Co., 218 N.C. 129, 10 S.E.2d 599, 601, Barnhill, J., speaking for the Court, said: "The essential elements of actionable fraud or deceit are the representation, its falsity, scienter, deception and injury. The representation must be definite and specific; it must be materially false; it must be made with knowledge of its falsity or in culpable ignorance of its truth; it must be made with fraudulent intent; it must be reasonably relied on by the other party; and he must be deceived and caused to suffer loss. Our decisions are uniformly to this effect. Leggett Electric Co. v. Morrison, 194 N.C. 316, 139 S.E. 455; Peyton v. Griffin, 195 N.C. 685, 143 S.E. 525."
Conceding without deciding that the statements attributed to the plaintiff by the defendant are sufficiently definite and specific to come within the rule, there is no evidence to show that these statements were false. Straus Co. v. Economys, 230 N.C. 316, 52 S.E.2d 802; Peyton v. Griffin, supra. It will be observed that the quoted language is in the present tense and can not be stretched to include a promise or declaration that the defendant would do $1000 worth of business a month or that he would sell through the station seven or eight thousand gallons of gas a month. An opportunity for a discovery of the truth or falsity of the statements attributed to the plaintiff was available to the defendant during the cross-examination of plaintiff, who admitted that he kept books from which could be ascertained the volume of business done by him and that he was willing to bring the books in after the lunch hour. The record does not disclose that the cross-examination was pursued to the point where the books were actually produced at the trial. This could easily have been done.
The operation of a service station, as any other business, produces different results when handled by different persons. The operation of such a business requires both personality and perseverance. It appears from the record that plaintiff and his father kept the station open until late hours of the night and sometimes all night, making the station a gathering place for plaintiff's friends and acquaintances. On the other hand, it appears that the defendant was new in the community and had never operated a station in that section and that he maintained an earlier closing time. He admitted that on some occasions he closed the station before ten o'clock at night. The evidence is replete with indications and implications that the business practices employed by plaintiff and defendant were entirely different, and that may account for a difference in the volume of business. There is no sufficient evidence in the record to prove that the representations attributed to the plaintiff by the defendant were in truth and fact false. The defendant is bound to have known that the plaintiff could not foresee his business success or failure, nor can the plaintiff be held accountable upon an allegation of fraud unless the statements attributed to him are in fact false and so proved by competent evidence. Williamson v. Holt, 147 N.C. 515, 61 S.E. 384, 17 L.R.A.,N.S., 240.
It follows that the court erred in denying the plaintiff's motion, made at the conclusion of the evidence for defendant, to dismiss defendant's cross-action or further defense. Straus Co. v. Economys, supra. Since the defendant failed to offer any evidence of fraud as alleged by him, the first issue should not have been submitted to the jury.
New trial.